CALEA Background

The federal wiretap law was enacted in 1968, and has undergone major revisions since then as Congress has tried to keep pace with changing technology and balance the often competing interests of law enforcement, privacy rights, and technological innovation.

In 1994, Congress adopted the Communications Assistance for Law Enforcement Act (“CALEA“). CALEA was intended to preserve but not expand law enforcement wiretapping capabilities by requiring telephone companies to design their networks to ensure a certain basic level of government access. Contrary to Congress’ intent, the FBI has used CALEA to expand its capabilities, turning wireless phones into tracking devices, requiring phone companies to collect specific signaling information for the convenience of the government, and allowing interception of packet communications without privacy protections. In 2005 the Federal Communications Commission granted an FBI petition and expanded CALEA to broadband Internet access and VOIP services.

CALEA Background

CALEA Implementation – FCC Proceedings Round One (1997-1999)

CALEA includes several checks and balances intended to ensure, first, that the law is not used to expand law enforcement surveillance capabilities, and, second, that the public has opportunities to participate in the process of deciding how the law is applied.

One of these provisions gives the Federal Communications Commission authority to oversee the implementation of the law. On April 20, 1998, in response to dueling petitions by the FBI and CDT, the FCC opened a broad inquiry into the privacy issues raised by the FBI’s efforts to use CALEA to expand its surveillance capabilities.

In August 1999, the FCC rejected CDT’s privacy concerns and approved many of the FBI’s demands, including a proposal to turn cellular and other wireless phones into tracking devices. At the same time, the FCC refused to protect the privacy of communications over packet-switched networks.

The links below lead to documents in the FCC proceedings for those interested in more details.

The Federal Communications Commission on September 11, 1998 delayed CALEA until June 30, 2000. The extension was a recognition that compliance with CALEA was not possible on the original deadline of Oct. 25, 1998 given the confusion and delay generated by the FBI’s demands.

The FCC also conducted an inquiry into the security of telephone company wiretap operations. The FCC proceeding, called a Notice of Proposed Rulemaking or NPRM, addressed a section of CALEA intended to ensure that CALEA compliance measures do not make the telephone system more vulnerable. CDT has argued that the FCC overlooked the security risks of surveillance systems that will be based on networked computerized switches.

CALEA Implementation – Court Appeal Round One (1999-2002)

From the outset, putting CALEA into effect was mired in controversy. Under the Act, disputes can be taken to the FCC, which is supposed to balance the competing interests of privacy, law enforcement and industry. The FCC, however, brushed aside privacy and cost concerns and, in an August 1999 decision, sided largely with the FBI. The FCC ruled that wireless companies must provide location information on callers, that companies were allowed to deliver packet communications to the government even when the government was not authorized to intercept them, and that carriers had to build six additional surveillance capabilities sought by the FBI.

In November 1999, the telecommunications industry and privacy groups challenged the FCC decision by filing judicial appeals, which were consolidated in the US Court of Appeals in DC. CDT filed its petition jointly with the Cellular Telecommunications Industry Association. The joint petition challenged the FCC’s requirement that companies locate and track wireless phone users. CDT and CTIA also asked the court to overturn the Commission’s ruling allowing the government to intercept the content of “packet” communications without a judicial warrant.

The nation’s telecommunications infrastructure is rapidly integrating technologies that use the Internet, the Internet protocol (“IP”) and other packet technologies to deliver voice communications (Voice Over IP, or VoIP). This development has the potential to reduce costs, support innovation, increase consumer options, and improve access to communications services. It also poses challenges for government agencies seeking to carry out wiretaps. In August 2005, the Federal Communications Commission ruled that providers of broadband Internet access and certain providers of VoIP services are required to design their networks to be wiretap friendly as a result of a 1994 law, the Communications Assistance for Law Enforcement Act (CALEA). CDT and others appealed, on the ground that CALEA applies only to the public switched telephone network and is ill-suited to the Internet.

Court Appeal Round Two – Extending CALEA to Internet and VoIP (2005)

After the FCC ruled in August of 2005 that producers of VoIP services and other packet technologies for transferring voice were subject to CALEA rules, CDT and a number of other civil liberties organizations filed an appeal with the District of Columbia Circuit Court of Appeals. Alongside CDT in the appeal were the American Library Association, COMPTEL, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Pulver.com and Sun Microsystems. In June 2006, the Court of Appeals rejected that appeal and in July CDT led a group of petitioners in asking the full court to reconsider its decision. Below are a collection of documents related to this second CALEA appeal.

At the same time (and in the same document) that the FCC issued its “First Report and Order” challenged in the above appeal, it also issued a “Further Notice of Proposed Rulemaking” proposing a range of further changes and decisions about the application of CALEA to the Internet. This further rulemaking proceeding continued during the court appeal.

Department of Justice Office of the Inspector General report, “Implementation of the Communications Assistance for Law Enforcement Act by the Federal Bureau of Investigation,” [pdf] [html], April 19, 2004

CDT One Pager, “The Internet and Law Enforcement Surveillance: Extension of CALEA to the Internet Would Be Unlawful, Unnecessary and Unwise” [pdf], May 20, 2004

Testimony of Jim Dempsey before the Subcommittee on Telecommunications and the Internet House Committee on Energy and Commerce on Law Enforcement Access to Communications Systems in a Digital Age, September 8, 2004